| People v Ayala |
| 2010 NY Slip Op 00528 [69 AD3d 869] |
| January 19, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Jimmy Ayala, Appellant. |
—[*1] Charles J. Hynes, District Attorney, Brooklyn, N.Y. (Leonard Joblove, Jodi L. Mandel, andAndreea N. Stefanescu of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (DiMango,J.), rendered December 6, 2007, convicting him of burglary in the first degree, upon a juryverdict, and imposing sentence.
Ordered that the judgment is affirmed.
The defendant's specific contentions regarding the Supreme Court's Sandoval ruling(see People v Sandoval, 34 NY2d 371 [1974]) are unpreserved for appellate review(see CPL 470.05 [2]; People v Melvin, 223 AD2d 604 [1996]). In any event, theSupreme Court's ruling struck an appropriate balance between the probative value of thedefendant's prior convictions on the issue of his credibility and the possible prejudice to him (see People v Mathis, 55 AD3d628 [2008]; People v Smith, 49AD3d 671 [2008]; People vJones, 41 AD3d 507, 508 [2007]).
The defendant's contention that he was deprived of a fair trial by certain comments made bythe prosecutor during summation is unpreserved for appellate review (see CPL 470.05[2]; People v Garguilio, 57 AD3d797, 798 [2008]). In any event, the challenged comments either were within the bounds ofpermissible rhetorical comment (see People v Galloway, 54 NY2d 396, 399 [1981]),were fair comment on the evidence (see People v McHarris, 297 AD2d 824, 825 [2002]),were fair response to defense counsel's summation (see People v Adamo, 309 AD2d 808,810 [2003]; People v Vaughn, 209 AD2d 459, 459-460 [1994]), or constituted harmlesserror (see People v Crimmins, 36 NY2d 230 [1975]). Finally, contrary to the defendant'scontention, defense counsel's failure to object to the prosecutor's comments during summationdid not constitute ineffective assistance of counsel (see People v Benevento, 91 NY2d708 [1998]). Dillon, J.P., Covello, Belen and Roman, JJ., concur.